Prow Mercantile Terms of Service
1. Definitions.
In these terms and conditions the following definitions apply:
“Broker”: Prow Mercantile Ltd. with its registered offices at Prodromou 121, Hadjikyriakou Building, 7th Floor, Office 703, CY 2064, Nicosia.
“Fixture” or “Contract”: A contract or contracts including but not limited to the sale, purchase, construction, towage, charter or drydock of a Ship together with negotiations to enter such contracts and, including but not limited to, any advisory and/or consulting services regarding anything herein. For the sake of clarity advisory and/or consulting services shall include any services provided in the evaluation and/or participation of any project (related to a Ship or not) in which such service is to be compensated at an agreed upon sum.
“Negotiations”: Exchanges, whether verbal or in writing, in relation to concluding a Fixture.
“Post Fixture Services” or “Post Contract Services”: Assistance with communications, operational matters and claims arising from the performance of a Fixture. For the sake of clarity, Post Contract Services shall be limited to those agreed upon in the Contract.
“Principal”: A party to a Fixture including the owner, seller, buyer, builder or charterer of a ship and any party guaranteeing the obligations of such a party, and/or a party engaging the services of the Broker in relation to a Contract for advisory and/or consulting services. Principal may include You.
“Representative”: A person or company, including but not limited to a ship manager, chartering department, shipbroker or other agent, who is not a Principal but is involved in negotiations on behalf of a Principal. In the case of a Contract, this includes but is not limited to any person or company authorized to engage the services of the Broker.
“Services”: The Services referred to in clause 2 of these terms and conditions.
“Ship”: Any type of ship, other vessel and/or equipment used or intended to be used for any purpose on, in or over water including but not limited to: traditional seagoing vessels (oil / product / chemical / gas tankers, bulk carriers, etc.); cruise and/or ferry and/or pleasure vessels; offshore supply vessels and/or anchor handlers; wind turbine installation and/or service vessels; oil rigs (semi-submersible or jack-up); floating or storage units; barges (self-propelled or dummy); and/or drydocks.
“You”: The party requesting the Broker’s services or responding to the Broker in relation to the provision of the Services. Where such party is acting as a Representative, references to You will additionally include the Principal.
The above definitions apply whether the defined words appear in the singular or plural form.
2. Services covered by these terms.
2.1 The Broker will act as a shipbroker in relation to Fixtures. The role of the Broker is to introduce Principals. Thereafter the broker will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing such Post Fixture Services as may be agreed or provided by the Broker. The Broker makes no warranty as acting on behalf of or as agent of any of the Principals unless specifically instructed to do so.
2.2 Unless specifically agreed in writing the Broker will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. The Broker is not responsible for the performance or non-performance of Fixtures or Principals.
2.3 Unless otherwise agreed the Services are provided on a Fixture by Fixture basis.
2.4 The Broker may also agree to perform other tasks such as providing ship valuations and/or specific market research. Such tasks may be subject to specific provisions (such as the wording of a valuation certificate) in addition to these terms and conditions. In the event of, and only to the extent of, a conflict between these terms and conditions and the specific provisions the latter will prevail. Otherwise, these terms and conditions, including those as to limitation of liability, will apply.
2.5 The Broker, in its capacity under the terms of a Contract for advisor and/or consulting services, will provide the services agreed upon in the Contract on a Contract by Contract basis.
3. Obligations of the Broker.
3.1 The Broker will perform the Services with the reasonable skill and care expected of a professional shipbroker.
3.2 In dealing with others the Broker will take care to stay within the authority given by You and to avoid misrepresentation.
3.3 During negotiations the Broker undertakes to pass on offers, counteroffers and other such communications accurately and in a timely manner. This obligation applies both to passing communications to and from You.
3.4 It is understood that the Broker may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases the Broker is dealing with such Representatives or other intermediaries in good faith as to the authority they possess but the Broker does not give a warranty as to that authority.
3.5 If the Broker is acting directly for a Principal then the Broker warrants that the Broker has the authority of that Principal.
3.6 If at any time the Broker provides information in respect of a Principal, including but not limited to information regarding corporate structures or financial standing, it is understood and agreed that in relation to the Broker such information is provided in good faith but without guarantee. It is the sole obligation of the Principal to satisfy themselves of any counterparty risk and decide whether to enter a Fixture with the proposed counterparty and on what terms.
3.7 Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that the Broker may act as a shipbroker for other parties in relation to the same or other Fixtures. In the event the Broker is dealing directly with two Principals in relation to the same Fixture the Broker’s duties will be to pass on offers, counteroffers and other such communications accurately and in a timely manner as authorized by each Principal in turn.
3.8 In the event of a Contract for advisory and/or consulting services, while the Broker may have more than one Contract, such contracts shall not compete with or otherwise overlap each other, and the Broker shall act in good faith and exclusively with the Principal in relation to the Principal’s specific Contract.
4. Confidentiality.
Where the Broker is given information stated by You to be on a confidential basis or it is expressly agreed that a Fixture and/or Contract is confidential (in either case “Confidential Information”) the broker will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from You. This obligation will not however extend to information which (i) was already or becomes known to the Broker through other sources not subject to such an obligation of confidentiality (ii) is or becomes known to the market generally other than as a result of a breach of this obligation or (iii) which the Broker is obliged to disclose pursuant to an order of a court or other such authority. In all cases such obligation of confidentiality shall be deemed to end 3 years after the end of performance of the Fixture in question or in the absence of a concluded Fixture and/or Contract and/or 3 years from the end of the Negotiations.
5. Obligations to the Broker.
5.1 If You are a Principal, you warrant that you have full legal power to enter into the Fixture or Contract brought about by the Services. If You are acting as a Representative, You warrant that you have the Principal’s authority (i) to accept these terms and conditions on their behalf and (ii) to make all offers, counteroffers and representations made during negotiations and (iii) to agree a Fixture or the terms of a Contract on their behalf.
5.2 Where Services are provided, You are deemed to have engaged the Broker in relation to any Fixture or Contract that arises in connection with those Services whether or not it is concluded via the Broker.
5.3 You will provide the Broker with all information and instructions necessary for the performance of the Services. Where actions need to be taken by a certain time (such as reply times during negotiations) you will ensure the Broker has sufficient time to forward such messages and/or information prior to the relevant time limit.
5.4 In relation to Post Fixture/Contract Services, if the Broker has asked you to use specific e-mail addresses for operational messages or claims then You will use those e-mail addresses. In the event that you do not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from the Broker you undertake to contact the Broker to confirm receipt. The Broker will have no responsibility for a failure to action a message or claims documentation unless it is sent timely to the correct address and acknowledged by the Broker.
5.5 You will take care to avoid misrepresentations occurring in Negotiations and/or during the course of the Contract. You will carefully review all messages sent or copied to You and promptly advise the Broker of any errors or misrepresentations. The Broker is not responsible for the consequences of a failure by You to review messages.
5.6 You warrant that You do not know of any reason why the Fixture or Contract could be unlawful or which could render the provision of the Services by the Broker in breach of any relevant law, including but not limited to (i) sanctions imposed by the United Nations, European Union, The United States of America or any national government having authority over You, the Broker, a Representative or a Principal (ii) laws relating to money laundering, bribery and corruption. You will promptly and fully inform the Broker of any such reason that comes to your attention. In the event that the Broker in their absolute discretion believes that the Fixture or Contract or the provision of the Services may infringe such laws they may by written notice terminate the Services immediately. In the event of such termination the broker will have no liability arising from such termination howsoever arising and, in the event of a Contract, the Broker will be compensated pro rata to the time spent on the Contract.
6. Market Report and/or Broker Work Products
If the broker publishes market reports or commentary or provides analysis or evaluation as part of the Services, these are provided for general information only and not for use in relation to specific Fixtures or Contracts, unless specified as such. Such market reports do not constitute advice and nothing contained in such documents amounts to a recommendation to enter or not to enter a Fixture and the Broker has no liability for the consequences of any person, including You, purporting to rely on such market reports. Specific work product which constitutes advice will be so stated, and You shall be responsible for acting upon it or not based on your own due diligence and internal processes, and the Broker shall have no liability for any consequences of Your decision to accept such advice or not.
7. The Broker’s remuneration.
7.1 On Fixtures the Broker’s remuneration will (unless otherwise agreed) be in the form of a commission on the freight, hire or purchase price as the case may be. The level of commission payable and the party responsible for payment will be set out in the Negotiations.
7.2 If the commission payable to the Broker is recorded in a commission clause or in a specific commission agreement then commission will be payable in accordance with that clause or agreement. The Broker will be deemed to have acted in reliance on the insertion of that clause and assented to the terms of the commission clause governing their right to commission.
7.3 If You are the party agreed to be responsible for paying the commission you undertake to make the payment or payments promptly. If You are not the party responsible for making the commission payment You expressly agree to the making of provision for such commission in the Fixture.
7.4 Nothing in these terms will prevent the Broker from enforcing a commission clause or other clause conferring a benefit on them as a third party in accordance with the terms of the Fixture.
7.5 In the absence of any specific provisions in the commission clause on voyage charters commission is payable on dead-freight and demurrage as well as on freight. Freight shall include all items that comprise the freight rate. On time charters commission will be payable on the hire paid under the charter and any continuation or extension of the charter. On sale agreements commission is payable on delivery of the vessel and payment of the purchase price directly by the Seller. On new building contracts commission is payable as and when each stage payment is made. Commission is payable on sums received by You as and when received and You will not withhold payment pending resolution of unconnected matters. Commission is exclusive of all taxes and duties.
7.6 The tasks in clause 2.4 above will be subject to the agreement of a specific fee between You and the Broker. The Broker will invoice You at the completion of the Services or at such other times and in such stages as may have been agreed. You will pay that fee within 30 days of the date of the invoice.
7.7 Unless otherwise agreed, if the amount of commission or fee and/or the manner of its payment is not specifically agreed, then a reasonable commission or fee will be payable in accordance with market practice as follows: 1.25% on all charter parties, 1% on all sale and purchase contracts including construction and demolition, and 4% on all drydock final invoices.
7.8 The compensation to the Broker for Contracts for advisory and/or consulting services shall be agreed upon separately and in writing as part of the Contract.
8. Limitation of Liability.
8.1 Nothing in these terms and conditions limits the Broker’s liability for (i) fraud or fraudulent misrepresentation (ii) death or personal injury caused by the negligence of the Broker.
8.2 The Broker will, subject to the provisions of this clause 8, be liable to You for damage directly caused by the failure to perform the Services with the reasonable skill and care expected of a professional shipbroker provided always the Broker will not be liable for:
(i) Loss of profits, business interruption, loss of reputation, indirect or consequential losses.
(ii) Damage caused by any event or cause that the Broker was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence.
(iii) Damage which was not solely caused by the act or omission of the Broker or which would have occurred in any event.
8.3 The Brokers total liability arising from or in connection with the Services shall in no circumstances exceed the sum of the value of the commission or fee due under the relative Fixture or Contract.
8.4 The exclusions and/or limitations set out in this clause shall apply whether the claim against the Broker is brought in contract, tort (including for negligence) breach of statutory duty or for any other cause whatsoever.
8.5 Any claim against the Broker must be made in writing and notified to the Broker within 14 calendar days of the date on which You became aware or ought to have become aware of the circumstances giving rise to the claim and any claim not so notified shall be deemed waived and time barred. The Broker shall in any event be discharged of all liability arising out of the Services unless suit is brought and written notice of it given to the Broker within 90 days of the end of performance of the Fixture or Contract, or in the absence of a concluded Fixture, 90 days from the end of the Negotiations.
9. Miscellaneous
9.1 All intellectual property rights in or arising out of the Services belong to the Broker, unless otherwise agreed.
9.2 The Broker has a general lien on all documents in its possession or control for all sums due from You to the Broker whether arising out of the Fixture or Contract or otherwise.
9.3 If a court finds that any provision of these terms and conditions is invalid, illegal or unenforceable, that provision shall, to the minimum extent required, be deemed deleted and the validity, legality and enforceability of the remainder of that and all other provisions of these terms and conditions shall not be affected.
10. Jurisdiction and Law
These terms shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.
The above Terms and Conditions may change from time to time and may not be up to date on this website. You, and/or the Principals, should ask for an updated Terms and Conditions at the time of entering into a Fixture or Contract agreement with the Broker.
Prow Mercantile Ltd.
February, 2021.